by John S. Dannenberg

The California Court of Appeals has held that when a parole violator is denied a timely revocation hearing that comports with the due process protections set forth in Valdivia v. Davis, 206 F.Supp.2d 1068 (E.D. Cal. 2002) [“Valdivia”], the proper remedy is the prisoner’s release.
Vincent Marquez was arrested on July 22, 2005 for an alleged parole violation. Per Valdivia, he was supposed to receive a probable cause hearing within ten days and a revocation hearing within 35 days. Neither hearing was held within those time limits and Marquez petitioned for habeas corpus relief. Specifically, the probable cause hearing was held two days late and a purportedly defective revocation hearing was held one day late. The Santa Cruz County Superior Court granted the writ and ordered Marquez released.
On appeal, the California Dept. of Corrections and Rehabilitation (CDCR) complained that release was not the appropriate remedy for a late hearing, and that Marquez had failed to show he was prejudiced by the tardiness. The superior court took judicial notice of the Valdivia Remedial Plan, which expressly provides that a violator’s attorney shall be appointed by the sixth day of detention and shall be given a copy …

by John E. Dannenberg

The California Court of Appeal, Second District, Division 6, affirmed a superior court’s ruling that had overturned Governor Arnold Schwarzenegger’s reversal of a favorable parole decision for a second-degree murderer. Applying an “especially close scrutiny” standard of review, the appellate court found there was no evidence supporting the Governor’s decision, and that the immutable fact of the nature of the murder could not be used to effect a permanent denial of parole.
Michael Montgomery pleaded guilty to second-degree murder in a 1985 killing that he had participated in, and was sentenced to 15 years to life. He had a history of alcohol-related incidents both before and during his incarceration, but had committed no other offenses. His last prison disciplinary infraction occurred in 1994.
Montgomery was found suitable for parole in 2005 at his eighth hearing, wherein the Board of Parole Hearings (BPH) noted his alcohol recovery programming. The San Luis Obispo County Sheriff and District Attorney vigorously recommended Montgomery’s release due to his previous cooperation, while the victim’s family opposed his parole. However, as is typical, the Governor (who chooses to review 100% of all parole grants but 0% of parole denials), reversed the BPH’s decision. …

by Matt Clarke

On December 20, 2007, an Illinois federal jury awarded a record amount in a civil rights case for false arrest – $15.5 million. The damage award was against the sheriff of Will County, Illinois and four of his deputies. Prior to trial, the former state attorney, forensic …

$5,775 Awarded For 104 Days of Over-Incarceration in Ohio Prison

The Ohio Court of Claims has awarded a former Ohio prisoner $5,775 for 104 days of over-incarceration.

Jasen Thomson was confined at the Marion Correctional Institution for 104 days beyond his lawful confinement. Thomson sued the Ohio Department of …

by Matt Clarke

On April 22, 2008, Houston, Texas, federal judge Lynn Hughes acquitted former Texas prison chief James “Andy” Collins, 57, and former president and CEO of VitaPro Foods Yank Barry of federal charges for bribery, money laundering, conspiracy and misuse of a social security number. This ended the unsavory tale of alleged corruption in a $33 million sweetheart deal which had Texas paying more for the Canadian-made soy-based meat substitute than it did for Texas-raised beef and Texas prisoners being forced to consume the inedible product which allegedly caused numerous medical problems, including outbreaks of boils and vomiting.

Hughes delayed the jury trial, originally begun in August 2000, just before then Texas governor George Bush’s first presidential election, claiming he was shocked that the prosecution’s main witness, Patrick Graham, was a convicted felon. Graham’s conviction stemmed from prison procurement and construction corruption in his company, The M-Group, which employed Collins in 1996. In August 2001, the trial recommenced and the jury convicted Collins and Barry, but Hughes refused to sentence them. Instead, he decried problems with the court reporter’s transcription and granted continuance after continuance while allowing Collins and Barry to travel freely while on bond--even outside the …

The plaintiff was awarded $45,000 in compensatory and punitive damages against federal customs inspectors for unlawful detention at an airport on suspicion of drug smuggling.

The plaintiff lacks standing to seek injunctive relief since she is not likely to pass through the San Francisco airport again.

The plaintiff also sought …

The plaintiff turned himself in at the county jail after he learned that a warrant had been issued because he missed a court appearance concerning child support arrearages. The sheriff's office misfiled his records and kept him for 57 days despite his daily complaints. (State law requires that persons arrested under these circumstances be immediately taken before the court.) Jail staff repeatedly told him that he was on the "will call" list but no date had been set. They refused to accept written complaints from him.

At 569: "... [T]his case plays out on the yielding natural grass of substantive due process rather than the stiff astroturf of specific constitutional rights." The Fourth Amendment usually governs up to a judicial determination of probable cause, but the plaintiff was arrested on a bench warrant so that determination had already been made. The Eighth Amendment does not apply to the unconvicted. The plaintiff's prolonged detention over his protests without a court appearance violated his substantive due process rights. The "shocks the conscience" test applies, but it can be met by a showing of deliberate indifference. Outside the Eighth Amendment context, the standard for deliberate indifference is closer to tort recklessness: "conscious disregard …

Terry Sybil, a King County, Washington prisoner, served 10 days in the county jail on a bench warrant, but the warrant wasn't recalled. He was later arrested and held for 27 1/2 hours on the same warrant and sued in state court for false imprisonment. On April 17, 1992, after …

by Matt Clarke

Sharon Keller, 54, presiding judge of the Texas Court of Criminal Appeals, has come under sharp criticism for refusing to keep the court open twenty minutes past its usual closing time to permit a late filing.
The late filing request was to allow attorneys for a death-sentenced prisoner to submit an appeal based upon a decision issued by the U.S. Supreme Court on the same day their client was scheduled for execution.

Keller’s staunch, some say over-the-top, support of the death penalty has earned her the nickname “Killer Keller.” She has called the failure to execute convicted murderers “a human rights violation.”

At 10:00am on September 25, 2007, the U.S. Supreme Court announced it would review a challenge to the “triple cocktail” method of lethal injection raised by two death row prisoners in Kentucky. Texas uses the same method of execution.

Texas prisoner Michael Wayne Richard, 48, was scheduled to be put to death that same day. Working at break-neck speed, David Dow, a University of Houston professor and expert in capital murder law, prepared a 107-page ap-peal in Richard’s case. Dow was to e-mail the appeal to the Texas Defender Service in Austin, which in turn …

An FBI informant is suing the Oregon Department of Corrections (ODOC) for holding him 110 days past his release date.

In the late 1970s, Jack Rowlands gained notoriety by planting a bomb at Portland International Airport, in a failed attempt to extort $200,000. All he got was a federal prison sentence.

In 2002, Rowlands pleaded guilty to attempted sexual abuse in Oregon and was sentenced to probation. In 2005, however, he violated his probation ands was sentenced to ODOC custody. He claims he should have been released August 11, 2006, but ODOC held him until November 29, 2006.

Rowlands recently made repeated claims that he knew where a Portland police officer dumped a body in 1978. In response to his claims Portland Police Chief Rosie Sizer and Multnomah County District Attorney Michael Schrunk asked the FBI to investigate. No evidence was found to support Rowland’s claims.

On October 8, 2007, Rowlands, 67, sued ODOC in state court for false imprisonment. He alleges ODOC held him 110 days too long because it failed to credit him with time served in the county jail. He seeks at least $100,000 for “anxiety, loss of companionship with his family, humiliation, mental anguish and depression.”

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